Ali v Esure Services Ltd

The question of law in this appeal is who has jurisdiction to make a committal order for an alleged contempt of court under CPR 32.14 (false statements) in proceedings that were commenced in the County Court, but were subsequently transferred to the High Court. Is it, as the Appellant contends, the Divisional Court? Or is it, as the Respondent contends, a single judge sitting in the High Court?

The appeal is from an order of HHJ Shaun Spencer QC dated 14 April 2011. He heard argument on a preliminary issue whether a single judge sitting in the High Court has jurisdiction to hear an application by the Respondent Esure Services Limited for the committal of the Appellant Mr Tariq Ali for alleged contempt of court under CPR 32.14. The judge held that he has jurisdiction. He granted permission to appeal against his preliminary ruling.

Proceedings were brought in the name of Mr Tariq Ali. The proceedings arose out a road traffic accident claimed to have happened in Huddersfield on 23 September 2008. The Claim Form incorporating Particulars of Claim and a statement of truth was filed in the Medway County Court on 15 April 2009 by MTA Solicitors, a firm based in Bromley, Kent. The Statement was signed by Collette Hammond, an “Operations Manager” at MTA Solicitors. The defendant was named as “Mrs Natalie Kayne”, who was alleged to have been the driver of a Ford car that ran into the back of Mr Ali’s stationary Nissan car. The claim was for the sum of £1,450.54 for credit hire, plus interest and costs.

By a consent order dated 7 May 2009 Esure, a company carrying on motor insurance business, was, on its application, joined as a second defendant. On 1 June 2009 the proceedings were transferred from the Medway County Court to the Huddersfield County Court. On 12 August 2009 Esure filed a defence denying that it was the insurer of the first defendant, Mrs Natalie Kayne, and asserting that Mr Ali’s claim was dishonest and part of a plot to defraud it. On 19 August 2009 a Notice of Discontinuance in respect of the claim was filed in the Huddersfield County Court by solicitors purporting to act for Mr Ali.

By order of District Judge Barraclough dated 28 September 2009 the personal injury proceedings were resurrected on the application of Esure. The Notice of Discontinuance was set aside and the matter was transferred to the High Court Queen’s Bench Division, Huddersfield District Registry. In the witness statement in support of Esure’s application it was made clear (paragraphs 9-12) that the principal reason for having the Notice of Discontinuance set aside and for having the proceedings transferred to the High Court was to seek an order for the committal of Mr Ali for contempt under CPR 32.14. The committal application would be heard by the same judge who would hear the evidence in the substantive trial. That course would save court time and resources and a substantial amount of costs that would be expended, if the matter were heard in the County Court and the committal application then had to be made to and heard by the Divisional Court. It was contended by Esure that that course proposed would be “more consistent with the overriding objective” of the CPR.

On 17 May 2011 the judge, sitting as a single High Court Judge at the Huddersfield District Registry, struck out the claim and made an order for costs. Mr Ali appears to have become a litigant in person when the solicitors previously acting in the proceedings came off the record. He did not attend the trial nor was he represented. His counsel says that he had no notice of it. The judge also granted permission pursuant to CPR 32.14 for Esure to commence committal proceedings against Mr Ali for causing to be made by MTA solicitors on his behalf a false statement in a document verified by a statement of truth without an honest belief in its truth contrary to CPR 32.14, which provides that:-

The grounds of Esure’s committal application are in the following terms:-

no such collision had occurred whether as alleged or at all,

‘Natalie Kayne’ was a fictitious identity created solely for the purpose of claiming compensation from the Applicant,

any collision was not caused by negligence-rather it was caused deliberately with intent to claim compensation from the Applicant,

any such collision was not an accident properly so called; and/or

he had not sustained any loss as alleged.

The reason for the committal application is that, according to Esure, the claim has been identified in the course of investigation by enquiry agents as a fraudulent claim and as part of a wider and well organised conspiracy to defraud Esure and a number of other insurance companies. The conspirators made claims using different identities and fictitious names, such as Natalie Kayne, in respect of collisions that either never occurred or were not accidents properly so called. Esure has obtained the permission of the court to bring committal proceedings against other named parties, who are accused of contempts of court similar to that alleged against Mr Ali.

Mr Ali denies that he was involved in an accident on 23 September 2008, or that he instructed MTA solicitors to issue a claim for him, or that he caused them to make a statement of truth on his behalf. Neither the court below nor this court are at this stage concerned with the factual disputes. The only issue before this court is whether a single judge sitting in the High Court has jurisdiction to hear and decide Esure’s committal application. That issue turns on the correct construction of RSC Order 52 rule 1 (3).

RSC Order 52 (Committal) provides that:-

The notes in Civil Procedure Vol 1 at 52.1.16 on page 2287 state that contempt under CPR 32.14 is regarded as a criminal contempt, being an interference with the course of justice, rather than as a civil contempt. In general, applications for criminal contempt are brought in the Divisional Court.

At sc52.1.31 on page 81 of Civil Procedure 2^nd Cumulative Supplement to the 2011 edition of Civil Procedure the position on jurisdiction is stated to be as follows:-

Later in this judgment I will discuss the Brighton & Hove Bus & Coach Company case which helpfully reviewed the earlier authorities touching on the jurisdictional question.

The judge described the background to the committal application, referred to the relevant law and summarised the rival submissions. He accepted the submissions of Mr Higgins, who appeared on behalf of Esure, that the signature to the statement of truth was “a continuing authentication” until the conclusion of the litigation, including the period when the proceedings were in the High Court. The judgment summarised Esure’s argument, with which he agreed, as follows:

It followed that the High Court has jurisdiction to proceed with the application for committal.

On behalf of Mr Ali, who was represented below and in this court by different counsel on a Direct Access basis, the following submissions were made:-

The judge was wrong to hold that the High Court has jurisdiction to proceed with the committal application.

The proceedings were initiated in the County Court. It was in connection with those proceedings that the statement of truth in question was made. The later transfer of the proceedings to the High Court did not give it jurisdiction to hear the committal application for contempt, as it was based on allegedly causing a false statement of case to be made in the County Court before the case was transferred to the High Court.

The County Court proceedings were discontinued. That broke the chain of causation between the statement of truth in question and the resurrected proceedings in the High Court. There were no longer any County Court proceedings with which the alleged contempt could be connected. The arrival of the proceedings in the High Court was the consequence of a procedural device used by Esure to persuade the County Court to set aside the Notice of Discontinuance and transfer the proceedings to the High Court, so that committal proceedings could be commenced before a single judge in the High Court.

Esure should have made its committal application to the Divisional Court, as only that court has jurisdiction to hear it

The following passage in the judgment of Lloyd Jones J in the Brighton & Hove Bus & Coach Co case decided by the Divisional Court was cited as a correct statement of the jurisdictional position:-

The judgment continued with a review of earlier case law and a discussion of other points that had been taken and reached the following conclusion with which Toulson LJ agreed:

The following passage in Toulson LJ’s short concurring judgment in the Brighton & Hove Bus & Coach Co case is a good introduction to a discussion of this case:-

The CPR have not been amended despite the fact that both judges in that case considered that the matter required consideration.

On behalf of Esure Mr Turner QC relies on CPR Part 1 1.2 as requiring the court to seek to give effect to the overriding objective when interpreting any CPR rule. That objective includes, so far as practicable, dealing with the case in ways that are proportionate, ensuring that the case is dealt with expeditiously and allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases: see CPR Part 1 1.1(2).

Although the committal provisions are formally preserved as RSC Order 52, those and other RSC provisions are gathered together in Schedule 1 to Section A of the CPR and, according to CPR Part 50 (2) on page 1599 of Civil Procedure Vol 1, the CPR apply in relation to the proceedings to which that Schedule applies. RSC Order 52 is in substance incorporated in the CPR, which the court must seek to interpret to achieve the overriding objective.

Turning now to the terms of RSC Order 52 rule 1(2) and (3) the emphasis in the court below was on “continuing authentication” of the truth of the Particulars of Claim i.e the signature on the Claim Form authenticated the case and that authentication continued until the conclusion of the case, whether that was in the County Court or in the High Court.

In his submissions to this court Mr Turner QC emphasises the continuing character of the alleged contempt. He says that, for jurisdictional purposes, the allegedly false statement of case put Mr Ali in contempt of court. He had not retracted that statement or purged his contempt. In those circumstances his alleged contempt continued even after the proceedings were transferred to the High Court, which therefore had jurisdiction both to try the substantive claim and to hear the committal application.

In my judgment, the first step in the interpretation of RSC Ord 52 rule 1(2) and (3) is to identify its purpose. That is not difficult: it is a provision for the allocation of jurisdiction for the punishment of contempt of court by order for committal.

In the first place, jurisdiction is allocated to the Divisional Court.

Under RSC Ord 52 rule 1(2) only the Divisional Court can make an order for committal in the cases of contempt of court in connection with certain proceedings: in the case of proceedings before it, in criminal proceedings (subject to an exception not material to this case), or in connection with proceedings in an inferior court. Thus, it is clear that if these proceedings had remained in the County Court only the Divisional Court could make an order for committal.

Similarly, only the Divisional Court may make an order for committal where contempt is committed otherwise than in connection with any proceedings. That does not apply here: this alleged contempt has been committed in connection with proceedings.

In the second place, jurisdiction is allocated to the High Court.

Under RSC Order 52 rule 1(3) an order for committal may be made by a single judge in the High Court where “contempt of court is committed in connection with any proceedings in the High Court.”

The critical question is whether the present case is caught by the wording, as well as being covered by the purpose of, (3). The Divisional Court in the case of Brighton & Hove Bus & Coach Co thought that it was plain that such a case fell within (2), not (3): the proceedings started in the County Court and the alleged contempt under CPR 32.14 was in connection with those proceedings.

However, paragraph (3) applies to “any proceedings in the High Court”, which is wide enough to cover proceedings that were not started in the High Court, but were transferred to it by the County Court. What matters is whether those are proceedings “in connection with” which the alleged contempt was committed. In this case the proceedings now in the High Court are the very same proceedings that were in the County Court. There is only one set of proceedings and the alleged contempt was committed in connection with them. On the transfer to the High Court the proceedings “in connection with” which the alleged contempt was committed did not become a different set of proceedings separate from those that were in the County Court.

With great respect to the Divisional Court in the Brighton & Hove Bus & Coach Co case, I find it difficult to see why, or how, in consequence of the transfer from the County Court to the High Court, the alleged contempt, which was “in connection with” those proceedings, ceased to be “in connection with” those identical proceedings in the High Court. In view of the virtual unanimity of counsel appearing in that case it is possible that the Divisional Court did not have the benefit of full argument on the construction of RSC Order 52 rule 1 (2) and (3).

In my judgment, the clue to the correct construction of RSC Order 52 rule 1 (2) and (3) is in the continuing character of the proceedings “in connection with” which the alleged contempt was committed, rather than the particular court in which those continuing proceedings were located at the time when the contempt was committed, as the Appellant contends, and rather than with the concepts of “a continuing authentication” or “a continuing contempt” advanced before the judge and proposed by Mr Turner QC in this court.

I am also of the view that the interpretation which I would favour is more consistent with the overriding objective of the CPR than that decided by the Divisional Court in Brighton & Hove Bus & Coach Co.

I would dismiss the appeal. It has not been shown that the judge’s ruling that he has jurisdiction to hear the application for committal was wrong.

In order to avoid any possible misunderstanding I would stress that the only issue for decision on this appeal is whether the application for committal can be heard in the High Court by a single judge. No decision falls to be made on this appeal about the facts of the case which are in dispute, or about whether Mr Ali is guilty of a contempt of court.

I agree. The Divisional Court in Brighton & Hove Bus & Coach Co Ltd v Brooks [2011] EWHC 806 (Admin) thought it unnecessary and undesirable that a Divisional Court, as opposed to a single judge of the High Court, should be required to hear an application for committal for contempt in connection with proceedings transferred from the County Court to the High Court, but felt constrained to interpret RSC Order 52 rule 1 as imposing such a requirement. As the Lord Justice who presided over the constitution of the Divisional Court which subsequently heard, over a period of five days, the substantive committal application in the Brighton & Hove Bus & Coach Co case, I would strongly endorse the view that it is unnecessary and undesirable for the resources of a Divisional Court to be taken up with such a case. It seems to me that Mummery LJ’s judgment provides a proper route to the interpretation of RSC Order 52 rule 1 which avoids that result. That route does not appear to have featured in the arguments addressed to the Divisional Court in the Brighton & Hove Bus & Coach Co case. Indeed, it emerged only in the course of exchanges between Bench and Bar in the hearing before us. But it is open to us on the wording of the rule and is supported by consideration of the overriding objective in CPR Part 1 to which, as explained by Mummery LJ, the court must seek to give effect when interpreting the rule. The result is entirely sensible and avoids the need for an amendment to the rule.

I also agree that this appeal should be dismissed for the reasons given by Mummery LJ. As he has pointed out, the thrust of the judge’s reasoning below for affirming the jurisdiction of a single judge of the Queen’s Bench Division was based on the proposition that it was inaccurate to regard the substance of the contempt alleged against Mr Ali as a ‘once and for all’ act that was over and done with once the ink on the verified particulars of claim was dry. It was rather that Mr Ali had thereby brought into being a document that also stood as a continuing authentication of his case until the conclusion of the litigation. Such continuing effect meant that there was a continuing contempt which was committed as much ‘in connection with’ the proceedings after their transfer to the High Court as it had been committed ‘in connection with’ the proceedings when in the county court. That was also the main burden of the submission that Mr Turner QC advanced to us in support of the judge’s decision.

I respectfully disagree with that analysis of this case. I accept that the verified particulars of claim had a continuing effect in the proceedings, inasmuch as they continued to stand as Mr Ali’s case unless and until amended or withdrawn. Whether in consequence there was or is any basis for an assertion that such continuing adherence to them amounted to a contempt of court is, however, a matter upon which I express no view, because it is irrelevant. That is because, for jurisdiction purposes, the contempt referred to in RSC Ord. 52, rule 1 must be the particular contempt alleged against the respondent; and, if the single judge is to have jurisdiction, it must be that contempt that was committed ‘in connection with any proceedings in the High Court’. In the present case, Esure’s application notice for an order for Mr Ali’s committal to prison was confined to the assertion that Mr Ali ‘has made, or caused to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth’, namely the particulars of claim issued at the outset of the proceedings. That form of wording was unsurprising. It owed its origin to the language of CPR Part 32.14. What, however, it made crystal clear was that the only contempt that Esure was alleging was the ‘one off’ act of making, or causing to be made, the verified particulars of claim.

As that is the only contempt that Esure has alleged, it is also the only contempt that Esure is entitled, if it can, to prove. Esure’s suggestion that that contempt, once committed, was also in the nature of a continuing contempt is not open to Esure because it has not alleged a continuing contempt. The question as to which court has jurisdiction to adjudicate upon the contempt that is alleged cannot be answered by considering which court would have jurisdiction to hear a contempt that is not alleged. In implicitly deciding otherwise, the judge fell into error.

The different basis upon which Mummery LJ would uphold the judge’s conclusion, and I agree with him, requires a focus not upon the alleged continuing effect of the contempt but rather upon the continuity of the proceedings. The effect of the issue of the claim form was to launch a single set of proceedings in the county court that were later transferred to the High Court. It is mistaken to regard the proceedings as comprising two separate parts, one in the county court and one in the High Court. They were one unified set of proceedings that ended up in the High Court; and the verified particulars of claim were issued ‘in connection with’ that single set of proceedings. It is therefore a natural and legitimate interpretation of RSC Ord. 52, rule 1 to regard those particulars as having been issued ‘in connection with’ proceedings in the High Court. It matters not that, at an earlier stage of their progress, the same proceedings were pending in the county court.

It may of course follow that the Divisional Court would also have jurisdiction to adjudicate upon the contempt alleged against Mr Ali, on the basis that, by way of like reasoning, his alleged contempt was also committed ‘in connection with’ proceedings in an inferior court. Such jurisdiction would not, however, be an exclusive jurisdiction, it would be a concurrent jurisdiction. I do not overlook that RSC Ord 52, rule 1(2) provides that where a contempt is committed ‘in connection with … proceedings in an inferior court … then, subject to paragraph (4), an order for committal may be made only by [the Divisional Court]’ (emphasis supplied); and that the ‘only’ may be said to indicate that not only is the jurisdiction of the Divisional Court not concurrent, it is an exclusive jurisdiction. I would not, however, so read the effect of the quoted words in the present context. They cannot in my view sensibly be intending to confer an exclusive jurisdiction on the Divisional Court in a case in which the proceedings have been transferred from the inferior court to the High Court with the consequence that RSC Ord 52, rule 1(3) can be said also to confer jurisdiction upon a single judge of the High Court.

This way of interpreting RSC Ord 52, rule 1 in the present context was, it should be noted, first raised by Mummery LJ in the course of Mr Turner’s submissions. It had not been originally advanced by Mr Turner. Once articulated, the point did however receive Mr Turner’s positive endorsement and he adopted it. I am satisfied that this solution to the question of interpretation that has arisen is a correct one; and, for the reasons given by Richards LJ, that it is also a sensible and practical one.

I too would dismiss the appeal.